McKeage v. Hanover Fire Insurance , 23 N.Y. Sup. Ct. 239 ( 1878 )

Dykman, J.:

The facts in this case bring it close to the line dividing fixtures into personalty and realty. On which side of the line it belongs is the question to be determined. The action is brought to recover the value of two pier mirrors, two mantel mirrors, and a number of gas fixtures. The mirrors were made to order for the owner of the house — one for the front parlor and one for the back parlor. The pier mirrors rested on a casing at the bottom and were attached at the top to a hold-fast, which was driven into the wall. The mantel mirrors were bung on books, also driven into tbe wall. There was a cornice over each of the parlor windows, which was connected with the glasses at the top, and the frame of the pier glass and the cornice were of the same pattern or design. The gas fixtures were attached to the gas-pipes where they came out of the wall. After the owner had thus put in the mirrors and the fixtures he sold and conveyed the property to another, who gave a mortgage upon the house and lot to the defendant, in the usual form of real estate mortgages, without any particular mention of these articles. A subsequent owner of the fee of the premises subject to the defendant’s mortgage sold the mirrors and fixtures in question to the plaintiff’s assignor, and gave him a bill of sale therefor. The defendant’s mortgage has now been foreclosed, and the premises bought in by the defendant at the sale, and now the plaintiff brings this action to recover the value of the articles, the defendant setting up the claim that the articles are attached to the house, and passed under the conveyances and the mortgage as a part of the realty. Thus again is presented the perplexing question what articles are fixtures so as to pass with the land, and what retain their chai’acter as chattels. No general rule ever has or ever can be laid down for the determination of this class of cases. Here the question must be considered as arising between grantor and grantee, or mortgagor and mortgagee, and in each case the rule is the same. The articles in question were not put in the house when it was built, and the house was not erected to receive them, but, on the contrary, they were put up in the house to be used there as chattels. There was no permanent attachment of the things to the freehold, and there was no difficulty in removing them from this house and putting them up in another. These are some of the tests recognized in the law by which to determine whether a chattel retains its character of personal property, and as they are in favor of the latter position, we think the articles in question retained that character. There seems to be no reason for holding that a mirror hung up or set up for use in a house becomes a fixture any more than a carpet which is nailed to the floor; neither should the intention with which it is put up control to make it a fixture. It is true the case does not stand so clear with the fixtures, but wo are inclined to bold them as chattels. We do not refer to the decisions in this State on the subject, although they have been very numerous, for the reason that it is impossible to reconcile them, or to gather from them any. general rule. Each case must be determined upon its own facts-, and after much reflection we think the articles were personal property, and that the judge at the Circuit was right in directing a verdict for the plaintiff, and a judgment must be ordered upon the verdict in his favor, with costs.

Barnard, P. J., concurred, Gilbert, J., not sitting.

Exceptions overruled, and judgment for plaintiff upon the verdict.